I. What is Stalking?
There is currently no criminal offence of “stalking” in the laws of Hong Kong. Following the recommendations for an anti-stalking law by the Law Reform Commission of Hong Kong in its October 2000 Stalking Report , a Consultation Paper on Stalking was issued by the Constitutional and Mainland Affairs Bureau in December 2011. Both papers recognize the need to criminalise stalking.
However, there is no comprehensive definition of “stalking” due to the various forms stalking can take. Contributors to the Law Reform Commission 2000 Report variously referred to stalking as “ the pursuit by one person of what appears to be a campaign of harassment or molestation of another, usually with an undertone of sexual attraction or infatuation” and “behaviour which subjects another to a course of persistent conduct, whether active or passive, which taken together over a period of time amounts to harassment or pestering”. The 2011 Consultation Paper proposed anti-stalking legislation which would be designed “ to protect the innocent from being pursued in any way that places the victim in constant fear or anxiety” .
Stalking can therefore involve any of the following:
- persistent pestering and intimidation through shouting, denigration, threats or argument;
- persistent silent, abusive or nuisance telephone calls;
- damaging property;
- keeping the keys of premises occupied by a former spouse or partner, and entering those premises without permission, particularly when some evidence of that entry is left behind;
- persistent following;
- persistent and unwelcome contact by phone, text, letter, WhatsApp or other information or communication technology;
- repeatedly calling the person to whom the conduct is directed at their home or place of work;
- declarations of love, often reinforced with threats of self-harm or suicide if the declared love is not reciprocated;
- threats of violence to the victim, or the victim’s family members, particularly when linked with demands for the victim to meet the stalker or reciprocate the stalker’s declared love, or both; or
- persistent sending of unwanted and unwelcome gifts to the victim’s home, place of work or school.
The common factor in stalking is therefore unwelcome, persistent and debilitating conduct directed towards the victim. The motive for such conduct is irrelevant.
Many stalkers, however, are obsessed with “love” for their victims. The stalker may make declarations of love, or threats of suicide or intent to inflict self-harm to attract the victim’s attention, particularly when the victim is known to be alone and afraid. These expressions of intent to inflict self-harm can be made directly, through fax messages, e-mail, social networking sites, or phone. Unwanted presents can be left at the victim’s home, workplace or school. This can lead to severe disruption in the victim’s personal and work life.
II. Responding to the stalker
As stalking is not currently a criminal offence in Hong Kong, consideration must be given to protection under existing Hong Kong laws. Criminal offences under the Offences Against the Person Ordinance ( Cap. 212 ), the Crimes Ordinance ( Cap. 200 ), the Theft Ordinance ( Cap. 210 ), the Summary Offences Ordinance ( Cap. 228 ) and the Public Order Ordinance ( Cap. 245 ) may be committed, depending upon the particular facts and the intention of the stalker.
Whether or not to prosecute in a particular case is a matter for the police to decide. Guidelines for the commencement of prosecution are set out in the Prosecution Code , issued on 7th September 2013. The main determining factor for a prosecution is whether the evidence in the particular case shows a reasonable prospect of success. In a criminal prosecution, guilt must be proved beyond reasonable doubt.
III. Possible criminal charges against a stalker under the Offences Against the Person Ordinance
A. Offences relating to assault
An assault is committed when the stalker deliberately or recklessly puts the victim in fear of the immediate application of unlawful force. Threatening acts or statements, however, are not actionable unless they bring about an apprehension of immediate violence. Following, loitering outside the victim’s home, or mere abuse and rhetoric without force do not amount to an assault.
The word “assault” is used both where there is an apprehension of the immediate application of unlawful force and where there is a “battery”. Battery is committed when there is unlawful, non-consensual physical contact. As long as there is an application of force to another person, it is not necessary to prove that the defendant had the intention to injure or that the contact has caused or threatened physical injury. Mere touching without consent or a lawful excuse is therefore enough.
If the police decide to prosecute, section 40 of the OAPO can assist the victim of a stalker where there is a direct threat to use force and there is such proximity between the stalker and the victim that the threat can have an immediate effect. This will be a question of fact in each case.
Assault causing actual bodily harm contrary to section 39 of the OAPO provides a higher penalty for assault or battery where there is actual bodily harm. Once assault or battery is proved, it remains only to prove that it caused actual bodily harm.
Section 39 of the OAPO , however, provides only a limited response to the stalker. There must first be conduct which comes within the definition of assault. It must then be proved that the assault brought about actual bodily harm. Stalkers who follow their victim, perhaps making rude gestures or shouting protestations of love and devotion at them, do not commit an assault.
B. Murder, Attempted Murder and Manslaughter
A worrying aspect of stalking is its potential to escalate into violence. This is illustrated by the case HKSAR v Tsui Chu Tin, John . The defendant, a police officer, had been in a relationship with the female victim for over a year, when she ended the relationship. He could not accept this and began stalking her, making numerous telephone calls to her home and workplace. Following complaints to the police, he was charged with three offences of Loitering Causing Concern (causing the victim reasonably to be concerned for her safety or well-being) contrary to section 160(3) of the Crimes Ordinance ( Cap. 200 ). He was granted bail with the condition not to approach or interfere with her. However, instead of complying with the bail condition, he purchased a knife and went to her flat. He spoke to her, but was ignored. He threatened to kill himself in front of her, saying that he wanted her to remember him for the rest of her life. When she left her flat to look for a public telephone, he followed her. She went to a public telephone, and told him she was talking to the police and asked him to go away. He then stabbed her repeatedly in the neck and chest. She died from her injuries, and the defendant was charged with murder. On appeal, his conviction for murder was reduced to manslaughter on the grounds of diminished responsibility. He was sentenced to life imprisonment with a minimum term of 12 years (the sentence for manslaughter is any sentence up to life imprisonment). It was revealed that he had engaged in a similar pattern of stalking with two of his previous girlfriends. In an incident with one of them, he drew his service revolver and pointed it at his head, threatening to kill himself if she did not resume her relationship with him.
The HKSAR v Tsui Chu Tin case underlines the problem of providing protection from a stalker, especially where there is diminished responsibility or some other psychiatric condition involved. Realistically, Tsui’s victim could only have been kept safe had Tsui been refused bail and kept in custody until his trial and sentence.
There is a presumption of bail in section 9D of the Criminal Procedure Ordinance ( Cap. 221 ). It is up to the prosecution to show that the right to bail should be denied in a particular case, in accordance with section 9G of the Criminal Procedure Ordinance . The prosecution has the burden of proof.
IV. Possible criminal charges against a stalker under the Crimes Ordinance
A. Criminal damage
Under section 60 of the Crimes Ordinance ( Cap. 200 ), a person who without lawful excuse destroys or damages any property belonging to another with the intention of destroying or damaging the property, or does so through recklessness, commits an offence punishable on conviction with a maximum penalty of life imprisonment. Criminal damage occurs where property is unlawfully destroyed or damaged. Criminal damage is given a wide interpretation, and includes not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness. Graffiti falls within this definition as, even though it can be removed, until it is removed, there is an alteration in substance to, for example, the wall upon which the graffiti has been written. Section 60 of the Crimes Ordinance therefore applies where, for example, a stalker, perhaps for revenge or out of annoyance that the victim has refused requests to meet, damages the victim’s car by scoring the paint work with a key or writing graffiti on the outside of the victim’s home.
Property, for the purposes of section 59 of the Crimes Ordinance includes, among other things, any programme or data held in a computer or computer storage medium. Destroying or damaging such property includes misusing a computer. A computer is misused when it is made to function in a way other than that established by its owner, when any programme in the computer is altered or erased, or when a programme or data is added to the computer. A stalker who misuses the victim’s computer, perhaps as an act of revenge for the victim not responding to requests to meet or for rejecting gifts sent by the stalker, commits criminal damage.
B. Certain acts of intimidation prohibited
Under section 24 of the Crimes Ordinance , any person who threatens another person with injury to the person’s reputation or property, or with any illegal act with intent to alarm the person so threatened or to cause the person so threatened to do an act they are not legally bound to do, or to cause the person so threatened to omit to do an act they are legally entitled to do commits an offence punishable upon summary conviction by a fine of $2,000 and imprisonment for two years and upon indictment , by imprisonment for five years.
Section 24 of the Crimes Ordinance addresses conduct which is directed towards alarming the victim. It extends to conduct directed to force the victim to meet the stalker or remain in contact with the stalker by threats of injury to the person, reputation or property if they do not. The threat can be to injure the person, reputation or property of a third party, for example a family member, if that is done with the intent specified in the section. Section 24 provides a possible protection against the stalker, but it is cumbersome and depends upon action by the police. This depends on the particular case and the sufficiency of evidence.
For more details, refer to the other topic: Domestic violence and assistance .
Under section 160(1) of the Crimes Ordinance , it is an offence, punishable upon conviction by a fine of up to $10,000 and imprisonment for up to six months, to loiter in the common parts of a building with intent to commit an arrestable offence. According to section 3 of the Interpretation and General Clauses Ordinance ( Cap. 1 ), an arrestable offence is an offence for which the sentence is fixed by law (e.g. murder) or for which the offender may be sentenced to imprisonment for a term exceeding 12 months (e.g. assault occasioning actual bodily harm) and an attempt to commit such an offence. Under section 160(2) of the Crimes Ordinance , it is an offence, punishable upon conviction with imprisonment for up six months, to loiter in the common parts of a building and to wilfully obstruct any person using that place. Section 160(3) makes it an offence, punishable upon conviction by imprisonment for up to two years, to loiter in a public place or in the common parts of any building and cause any person reasonably to be concerned for their safety or well-being. The common parts of a building are the entrance area, lobby, passageways, corridors, staircases, landings, rooftop, lifts, escalators, cellar, toilets, water closets, wash houses, bath-houses or kitchens which are in common use by the occupiers of the building, as well as any compound, garage, car park, car port or lane.
Where there is a prosecution and conviction, concerns arise whether the sentences are sufficient to reflect the conduct involved and to act as a deterrent to stalking. In HKSAR v Au Pak Chung the defendant was convicted of loitering causing concern contrary to section 160(3) of the Crimes Ordinance . The defendant loitered in a public playground, and by his presence there, caused the victim, a schoolgirl, reasonably to be concerned for her safety or well-being. He stood in front of a group of schoolgirls, bent down and looked up the victim’s skirt. The victim said she was frightened because she did not know what would happen next. The defendant eventually moved away, but remained in the vicinity, looking at other schoolgirls. He was sentenced to imprisonment for two months after appeal.
D. Where cases involve both criminal intimidation and loitering causing concern
HKSAR v Pearce Matt James illustrates the possibilities for the victim of a stalker of both criminal intimidation contrary to section 24 of the Crimes Ordinance , and loitering causing concern contrary to section 160(3) of the Crimes Ordinance e. The defendant and the victim (a teacher) had a short-lived relationship. When it ended, the defendant, on various occasions, went to the school where the victim worked. He carried placards and handed out leaflets containing disparaging remarks about the victim. In her evidence at the trial, the victim said the defendant had approached her despite her requests to leave her alone, thrown beer on her, poked her, and broken into her residence without her consent. She said, “ I was very frightened, I was devastated, I was upset, I was humiliated, and I cried ”. The defendant was convicted on 15 charges variously of criminal intimidation and loitering causing concern and sentenced to a total of 42 weeks’ imprisonment. His appeals against each conviction were dismissed, but his sentence was reduced to a total of eight months’ imprisonment.
In this case, there was clear evidence of the defendant’s conduct. It continued over a long period of time, and there were reliable witnesses to that conduct. In any event, the defendant did not dispute the facts, but on the criminal intimidation and loitering charges, he argued he was entitled to do what he did, relying on Article 27 of the Hong Kong Basic Law , which provides that Hong Kong residents have freedom of speech, freedom of the press and of publication, freedom of association, of assembly, of procession and of demonstration. In dismissing that argument, Deputy High Court Judge Line (as he then was) stated: “ I take what the Appellant has argued here to be really an attack on the constitutionality of both section 24 and 160(3) of the Crimes Ordinance . If a law does offend the Basic Law, then the courts will strike it down if the circumstances justify it. The circumstances require the court to look at considerations of necessity and proportionality. Both these provisions have now long withstood the passage of the Bill of Rights. Indeed, section 160 has been amended in the light of the passing of the Bill. I have no doubt these criminal provisions exist for good reason; that they are lawful; that they are necessary to protect people from certain sorts of conduct, and that they are proportionate to the mischiefs they seek to control. It would be a very sad day if a man could hound someone out of their job in Hong Kong merely by saying, “I’m allowed to do that because I have the right to demonstrate”. Accordingly, the constitutional challenge to the intimidation and the loitering, in my judgment, fails .”
E. Procurement by threats
Procurement by threats contrary to section 119 of the Crimes Ordinance is committed where a person procures another person by threats or intimidation to do an unlawful sexual act in Hong Kong or elsewhere. Procurement by threats is punishable upon conviction by imprisonment for up to 14 years.
- has unlawful sexual intercourse;
- commits buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
- commits buggery or an act of gross indecency with a person of the same sex.
‘Unlawful sexual intercourse’ for the purposes of section 119 of the Crimes Ordinance is sexual intercourse for which there is no consent. ‘Procurement’ means to get by special effort, to bring about, to acquire or to obtain something that otherwise would not be acquired or obtained.
A good example of a section 119 offence is HKSAR v Wong Dawa Norbu Ching Shan . The victim engaged in unwanted sexual intercourse with the defendant because of his threats to publish a nude photograph of her on “YouTube” and “Facebook”, and to send the photograph to her boyfriend. A similar situation of a defendant threatening to post nude photographs of the victim on the Internet unless she agreed to have sexual intercourse with him arose in HKSAR v Liang Fu Ting . As a result of the defendant’s threats, the victim had unwanted sexual intercourse with him on two occasions.
Procurement by threats overlaps with blackmail, contrary to section 23 of the Theft Ordinance. In cases such as Wong Dawa Norbu Ching Shan and Liang Fu Ting , the section 119 charge may well be the most appropriate one. Both cases may be seen as examples of stalking in the sense that the defendants engaged in a persistent course of contact to wear down the victims to obtain unwanted sexual intercourse.
V. Possible criminal charges against a stalker under the Theft Ordinance
Blackmail, contrary to section 23 of the Theft Ordinance ( Cap. 210 ), is committed where a person, with a view to gain for himself or another or with intent to cause loss to another, makes an unwarranted demand with menaces. A demand with menaces is unwarranted unless the person making it does so in the belief he has reasonable grounds for making the demand and the use of the menaces is a proper means of reinforcing the demand. Blackmail is punishable on conviction by imprisonment for 10 years.
Blackmail would be committed by a person who, for example, has had video-recorded sexual intercourse with the victim and then sends the victim messages, either directly or through information and technology systems, demanding more intercourse or the payment of money to stop the video being made public. An example of this situation is HKSAR v Chai Mei Kwan , where 20 months’ imprisonment was imposed after the defendant’s plea of guilty. After having sexual intercourse with the victim, the defendant sent him SMS messages demanding money. In another SMS, she told him there was a video of their intimacies which could be distributed to “everyone”. In sentencing, Deputy District Judge Joseph To remarked, “ There are two aggravating factors in this case. Firstly, the defendant did not just utter empty words; she had equipped herself with the video clip showing her and the victim in compromising circumstances. Secondly, the threatened means of dissemination via the computer must have filled the victim with alarm; it is common knowledge that the Internet knows no borders and once uploaded, information is difficult to erase.”
The case HKSAR v Chai Mei Kwan involved demands for money. A charge of blackmail could also be brought where the stalker threatens the victim with violence: for example, unless the victim meets or engages in sexual intercourse with the stalker. Similarly, blackmail would be committed where the threat is to injure a family member or to damage the victim’s property or the property of family members unless the victim, for example, agrees to meet or engage in sexual intercourse with the stalker. If sexual intercourse occurs after such threats, conceivably a charge of rape contrary to section 118 of the Crimes Ordinance ( Cap. 200 ) could be brought on the basis that there was no consent to sexual intercourse because of the threats. If the sexual activity falls short of sexual intercourse, if the stalker is a female, or if the stalker and the victim are of the same gender, a charge of indecent assault contrary to section 122 of the Crimes Ordinance could be brought, again on the basis that there was no true consent to the sexual activity because of the threats made by the stalker.
Burglary contrary to section 11 of the Theft Ordinance is committed if a person enters any building or part of a building as a trespasser with the intention of stealing something in the building, inflicting grievous bodily harm on anyone in the building, raping any woman in the building, or doing unlawful damage to the building or anything in the building. Burglary is punishable by 14 years’ imprisonment.
Entry as a trespasser means that the entry is without the permission of the occupier or without any lawful justification. There is no requirement that the entry be forced. Using keys to enter a building without any right to use those keys, or entry through an open door or an open window without any right or permission to do so is trespassing.
Unlawful damage includes causing a computer within the building to malfunction, unlawfully erasing any programme in a computer, or unlawfully adding any program or data to the contents of a computer in the building or a computer storage medium in the building.
Burglary is committed even if nothing is stolen, no one is injured, or no damage is caused to the building or its contents, provided the intention to steal, inflict grievous bodily harm, commit rape or do unlawful damage is present at the time of entry as a trespasser. It is also burglary if a person who has entered any building or part of a building as a trespasser steals or attempts to steal anything in that building or part of it, or inflicts or attempts to inflict grievous bodily harm on any person in the building.
A stalker who enters the victim’s premises intending to steal or commit unlawful damage therefore commits burglary. Similarly, entering with intent to do unlawful damage is burglary. This could, for example, be the intention to write an endearing or threatening message on a wall inside the premises.
It would not, however, be burglary if the intention is to leave a pre-prepared message, for example, on a table in the premises to let the victim know the premises have been entered. It would similarly not be burglary if the purpose of the entry is simply to look around, for example, to check whether the victim has formed a new relationship or a new partner has moved in.
VI. Possible criminal charges against a stalker under the Summary Offences Ordinance
A. Offences in connection with telephone calls or messages, or telegrams
Section 20 of the Summary Offences Ordinance ( Cap. 228 ) may provide some protection from telephone calls made by a stalker. It is an offence punishable by a fine of $1,000 and imprisonment for two months to send any message by telegraph, telephone or wireless telegraphy which is grossly offensive, or of an indecent, obscene or menacing character. It is also an offence under the same section to send any message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety to any other person ( section 20(b) ), or to persistently make telephone calls without reasonable cause for any of those purposes ( section 20(c) ).
Giving “wireless telegraphy” its practical and contemporary meaning as the transfer of information between two or more points that are not connected by an electrical conductor, section 20 extends to messages sent by social network apps for smartphones through the Internet: e.g. WhatsApp, Line or Skype. This interpretation accords with section 19 of the Interpretation and General Clauses Ordinance ( Cap. 1 ) (IGCO), which requires legislation to “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”.
Section 20 requires the message to be grossly offensive, or of an indecent, obscene or menacing character. Whether or not this is so is fact specific. However, giving section 20 a purposive interpretation as required by section 19 of the IGCO , the phrase “menacing character” covers persistent silent telephone calls. As discussed in R v Ireland and R v Burstow , repeated telephone calls, including silent calls, could cause the victim to apprehend immediate and unlawful violence and, depending on the particular circumstances, be of a menacing character.
Sometimes, persistent telephone calls, particularly silent calls, from a stalker during the night can be particularly disruptive and harmful to mental or physical health, particularly if the victim is known to be alone and afraid. As established in English cases R v Ireland and R v Burstow , recognisable psychiatric illness can amount to bodily harm (but this does not include fear, distress or panic). The stalker can be charged with Assault Occasioning Actual Bodily Harm contrary to section 39 of the Offences Against the Person Ordinance .
Ireland made persistent silent telephone calls to three women, who consequently suffered psychiatric illness. Ireland's conviction on three counts of assault occasioning actual bodily harm (equivalent to section 39 of the Offences Against the Person Ordinance of the Laws of Hong Kong) was upheld: psychiatric injury can amount to actual bodily harm, and since repeated telephone calls could cause the victim to apprehend immediate and unlawful violence, his conduct could amount to an assault. Burstow conducted an eight month campaign of harassment against a woman using both silent and abusive telephone calls. She was fearful of personal violence and suffering from a severe depressive illness. His appeal against conviction for unlawfully inflicting grievous bodily harm contrary to the equivalent of section 19 of the Offences Against the Person Ordinance of the Laws of Hong Kong was dismissed on the grounds that psychiatric injury could amount to grievous bodily harm.
Both Ireland and Burstow indicate possible protections are available to the victims of stalkers in Hong Kong by using the Offences Against the Person Ordinance . The problem is that in proving the case, there is the issue of the time and cost involved, and the question of whether the particular case comes within the guidelines for the commencement of a prosecution under the Department of Justice’s Prosecution Code 2013 .
VII. Possible criminal charges against a stalker under the Public Order Ordinance
A. Disorderly conduct in a public place
Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, is guilty of an offence contrary to section 17B(2) of the Public Order Ordinance ( Cap. 245 ) and is liable on conviction to a fine at level 2 of Schedule 8 of the Criminal Procedure Ordinance ( Cap. 221 ) (currently $5,000) and to imprisonment for 12 months.
This section provides a potential response to a stalker who uses threatening, abusive or insulting words likely to cause a breach of the peace. An example is HKSAR v Chan Kwai Hung . The defendant behaved in a disorderly manner in a public place by positioning a black recycle bag containing a mob ile phone with a camera lens under the skirt of a female. There were a number of people nearby, any one of whom could have discovered what he was doing. Had they done so, the court was satisfied that what the defendant did would have caused sufficient outrage to make it likely that one or more of them would not confine themselves simply to the force required to effect the arrest of the appellant. A witness to the event grabbed the straps of the bag from Chan in order to stop him. Chan was convicted after trial and sentenced to 14 days’ imprisonment. His appeal against conviction was dismissed, but his sentence was altered to a Community Service Order of 160 hours.
Section 17B(2) affords some protection to the victim of a stalker where the stalker’s conduct amounts to an actual or threatened breach of the peace. It does not, however, address cases in which a stalker simply follows the victim or contacts the victim through electronic communication systems. Such systems distance the victim from the stalker. In neither case is there disorderly conduct in a public place. Persistently contacting the victim through electronic communication systems, however, may involve an offence contrary to section 20 of the Summary Offences Ordinance .
VIII. Possible criminal charges against a stalker for common law offences
A. Outraging public decency
Outraging public decency is an offence contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance ( Cap. 221 ). This offence again affords potential protection to the victim of a stalker where there is an act of such lewd, obscene or disgusting character as constitutes an outrage of public decency. The maximum penalty is imprisonment for seven years or a fine. It potentially affords protection where the stalker follows his female victim in a public place, and takes or attempts to take an upskirt photograph or exposes himself indecently to the victim. There are obvious difficulties, however, in applying the offence to simple following or contacting, especially where the contract is made through information and communication technology systems.
B. False imprisonment
False imprisonment is complete deprivation of the victim’s freedom to leave a place for any time, however short, without lawful cause. It is an offence contrary to common law and also a tort. Incarceration in the accepted sense of the word is not necessary. It is sufficient that the victim is unlawfully prevented from leaving a place. A stalker who threatens force and intimidates the victim into remaining where they are commits false imprisonment.
IX. Possible preventative action against stalkers
A. Arrest for breach of the peace
Although breach of the peace is not an offence in common law, a person may be arrested without warrant for this. There is a power of arrest where a breach of the peace has been committed in the presence of the person making the arrest; or the person making the arrest reasonably believes that a breach of the peace is imminent; or where a breach has been committed, and it is reasonably believed that a renewal is threatened. A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or in their presence to their property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. A person arrested for breach of the peace may be charged with an offence which has a breach of the peace as an element of the offence, or bound over to keep the peace and to be of good behaviour, or simply released.
The powers of judges and magistrates to bind over to keep the peace or to be of good behaviour is derived from common law and from statute. Preventive action can be taken against potential offenders before an offence is committed. The purpose is to prevent breaches of the peace before they occur, not to punish the arrested person for breaching the peace. The courts have wide discretion about whether or not to bind over. A binding over order can be made if a judge or magistrate is satisfied that there is a risk that the person before the court is likely to cause a breach of the peace in the future.
section 109I of the Criminal Procedure Ordinance ( Cap. 221 ) gives judges and magistrates the power to require any person before the court to enter into a recognisance with or without sureties to keep the peace for a specified period of time and be of good behaviour. Failure to comply may lead to imprisonment and, if there is a further breach of the peace, all or part of the recognisance may be forfeited. There is no power to commit to prison for breaching the recognizance.
X. Civil procedures
Where a stalker commits a civil wrong, such as assault, intimidation, trespass or nuisance, the victim may bring a civil lawsuit in tort.
The stalker’s activities may be both a crime and a tort: a civil wrong. A crime is an offence against society as a whole and is prosecuted by the HKSAR Government. The Secretary for Justice has the responsibility for the conduct of criminal prosecutions, including the decision of whether or not to prosecute in a particular case. A tort is a civil wrong and can be the subject of proceedings by the person who is wronged by the stalker’s conduct. Whether or not to commence proceedings for a tort is entirely a matter for the person wronged. A successful criminal prosecution leads to the punishment of the offender. Successful proceedings in tort lead to an award of monetary compensation to the person wronged, and where there is evidence that the wrongful conduct is likely to be repeated, an injunction may be granted to prevent repetition of the wrongful conduct.
In criminal proceedings, the prosecution must prove guilt beyond reasonable doubt, which means with certainty. In civil proceedings, proof is on the lower standard of the balance of probability, which means more likely than not. Because of the lower standard of proof, there can be a successful action in tort even if a wrongdoer has been acquitted of the criminal offence giving rise to the action in tort, or if no prosecution has been commenced.
However, civil litigation has shortcomings. The procedures are slow moving and expensive, and provide many opportunities for delay. There is also concern whether the victim has the time, ability and resources to commence proceedings.
A. The tort of intimidation
The tort of intimidation involves intentional unlawful coercion. There must be a demand by the defendant which is reinforced by a coercive and unlawful threat unless the demand is complied with. The demand must be deliberately aimed at another person and made with the intention of compelling that person to do an act they are not obligated to do or to refrain from doing an act they are legally entitled to do. It must be shown that the person to whom the demand is addressed complied with the demand because of the coercive and unlawful threat. It must also be shown that the defendant knew or should have known that complying with the demand would cause loss and damage to that person and that the person making the demand intended to cause loss and damage to the person to whom the demand was addressed.
The tort applies where harm is inflicted on the plaintiff by the defendant’s intimidating the plaintiff or a third person whereby the plaintiff or a third person is compelled to act or refrain from acting in obedience to the wishes of the defendant. It is an inexact remedy for victims of stalking, as there must be evidence the stalker intended to coerce their victim into doing or refraining from doing something. Simply hanging around the victim does not of itself amount to coercion. A wrong may be threatened without the requisite element of coercion. Even if there is coercion, the tort cannot be invoked unless there is coercion to act or to refrain from acting because of the unlawful act. Only coercion by way of unlawful conduct is caught.
B. The tort of trespass to the person
An assault is committed if the defendant deliberately or recklessly puts a person in fear of unlawful physical contact. Acts or statements are not actionable unless they bring about fear or apprehension of immediate violence. Following, hanging around outside the victim’s home, abuse or rhetoric will not normally suffice.
A battery is committed when there is an actual infliction of unlawful force. As long as there is an application of force to another person, it is not necessary to prove that the defendant had an intention to injure or that the contact caused or threatened any physical injury to the plaintiff. Provided the required ingredients are proved, the tort will have been committed however slight the force. Mere touching without consent or lawful excuse is therefore actionable. The tort is useful where the stalker threatens force or applies force to his victim. But a stalker may only repeatedly make telephone calls or follow his victim. Persistent following or verbal abuse is not a battery, as there is no contact between the stalker and the victim. Merely uttering annoying statements or causing a nuisance outside the victim’s home or work place is not a trespass to the person.
C. The tort of harassment
This tort involves persistent conduct which would cause, and which the defendant ought reasonably to know would cause, worry, emotional distress or annoyance to another person. The tort of harassment has some similarities with the tort of intimidation and may be seen as an extension or development of that tort. An essential difference between the two torts is that the tort of intimidation requires that the person to whom the coercion was directed complies with the coercion, whereas the tort of harassment does not require that the threats or coercion succeed in bringing about the result the defendant desired. Another difference between the two torts is that the tort of intimidation requires intention to cause loss and damage, whereas the tort of harassment addresses a course of conduct which causes worry, emotional distress or annoyance to another person.
An example of the conduct addressed by the tort of harassment is seen in Lau Tat Wai v Yip Lai Kuen, Joey , in which Anthony Chan J referred to the tort of harassment as:
“--- a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person."
The plaintiff, Mr Lau, ended a brief, but intimate relationship with the defendant. Over the next six years she subjected him and his family to an intense and extreme series of malicious acts intended to harass, intimidate and generally damage his life, well-being and career. For their own protection, Mr Lau and his family moved house, gave up jobs and maintained a distance from friends. Ms Yip hacked into Mr Lau’s e-mails and downloaded all his contacts. In addition, she made numerous telephone calls to both him and his friends.
The plaintiff was awarded damages amounting to $946,673 in costs and an injunction to restrain further harassment. The injunction restrained the defendant, her servants or agents, or otherwise howsoever, from carrying out any of the following acts:
- causing or permitting harassment, nuisance or intimidation to the plaintiff or his named family members;
- causing or permitting trespass to the properties belonging to the plaintiff;
- entering or remaining at or coming within a distance of 30 metres from:
- the plaintiff’s place of residence;
- the plaintiff’s grandmother’s place of residence;
- the plaintiff’s work place;
- approaching or contacting the plaintiff or the said family members, whether directly or indirectly, whether by telephone or email, or otherwise;
- causing or permitting the printing, producing, circulating, distributing, sending, emailing, transmitting or otherwise publishing of any materials containing derogatory remarks of the plaintiff or the said family members;
- causing or permitting any surveillance on the plaintiff or investigation into any personal data of the plaintiff or the said family members.
This tort affords a remedy against the determined and persistent stalker, but is unlikely to assist where the conduct is at a relatively low, though unpleasant level. The impact of the defendant's conduct on Mr Lau substantially disrupted his personal and private life, and his business activities. In any event, it raises the question of whether the average victim of a stalker has the capacity, aptitude, time and resources to commence an action in tort. Mr Lau was legally aided.
D. Enforcement of injunctions
Breach of an injunction is a contempt of court punishable by a fine or imprisonment. Imprisonment is rarely used. A committal order, which is an order that the person who has breached the terms of an injunction be punished with imprisonment, is made only when all other efforts to control the situation have failed. Rather than impose immediate imprisonment, the court which made the injunction may, particularly on the first breach or where the breach is not that serious, accept an undertaking (a promise) from the defendant not to commit further breaches of the injunction. As breach of an injunction is not a criminal offence, the police cannot arrest a person who is in breach of an injunction, unless this is necessary to prevent a breach of the peace, or the breach itself amounts to a criminal offence. Enforcement of the injunction is a matter for the plaintiff. The plaintiff is responsible for issuing the necessary documentation to bring the defendant back before the court which made the injunction and to show that the injunction has been breached.
As was recognised by the 2000 Law Reform Commission Report and by the 2011 Consultation Paper, neither the current criminal law nor the current civil law are adequate to protect the victims of stalking. Current criminal offences address conduct which has already occurred. Even where the stalker’s conduct comes within one of the criminal offences already discussed, whether or not to prosecute is a matter for the police. The victim has little, if any, say about that.
Civil actions in tort are time consuming and complicated, and generally beyond the capability of ordinary persons. Retaining a solicitor to conduct civil proceedings is expensive. Unless Legal Aid is obtained, civil proceedings will be unaffordable to most. Whether or not Legal Aid is obtained for civil proceedings depends both upon financial eligibility and the merits of the particular case. Even where the applicant for a Legal Aid certificate is financially eligible for Legal Aid, there is no certainty the merit test will be met.
The 2011 Consultation Paper substantially adopts the recommendations in the 2000 Law Reform Commission Report for the criminalisation of stalking. In summary, it is proposed that a criminal offence of stalking will be committed:
- where one person pursues a course of conduct which amounts to harassment of another person and which the former knows or ought to know amounts to harassment of the latter;
- the harassment is serious enough to cause the person who is harassed alarm or distress; or
- a person ought to know that his/her conduct amounts to harassment of another person if a reasonable person in possession of the same information the alleged harasser has would think that the course of conduct engaged in amounted to harassment of the person towards whom the conduct is directed.
Whilst the recognition by the Government of the need to criminalise stalking is a positive step forward, concerns arise about the possible use of a stalking law to suppress such human rights as the right to protest, the right of assembly and even freedom of the press. These are matters that will need to be considered when it comes to drafting the necessary legislation. It is, however, likely to be some time yet before Hong Kong has an effective anti-stalking law.
1. What is Stalking?
There is currently no specific criminal offence on “stalking” in the laws of Hong Kong, nor comprehensive definition of “stalking”. Its various aspects are governed, in different extent, by the laws in Hong Kong. Since 2000, there has been call for reform in this area. The Law Reform Commission of Hong Kong in its October 2000 Stalking Report referred to stalking as “the pursuit by one person of what appears to be a campaign of harassment or molestation of another, usually with an undertone of sexual attraction or infatuation” and “behaviour which subjects another to a course of persistent conduct, whether active or passive, which taken together over a period of time amounts to harassment or pestering”. A Consultation Paper on Stalking was issued by the Constitutional and Mainland Affairs Bureau in December 2011 proposed anti-stalking legislation which would be designed “to protect the innocent from being pursued in any way that places the victim in constant fear or anxiety” .
Stalking can therefore involve any of the following:
- persistent pestering and intimidation through shouting, denigration, threats or argument;
- persistent and unwelcome contact by phone, text messages, letters or other information or communication technology; or
- repeatedly calling the person to whom the conduct is directed at their home or place of work.
To know more about this topic, please visit Daily Lives Legal Issues > Stalking > What is stalking? .
2. My ex-lover persistently calls me and sends text messages to me. It causes me great disturbance. Because of this, I suffer from mental distress and need to see a doctor. Has my ex-lover committed any offences?
Section 20 of the Summary Offences Ordinance ( Cap. 228 ) may provide some protection from telephone calls made by a stalker. It is an offence punishable by a fine of $1,000 and imprisonment for two months to send any message by telephone or wireless telegraphy which is grossly offensive, or of an indecent, obscene or menacing character. It is also an offence under the same section to send any message known to be false for the purpose of causing annoyance, inconvenience or needless anxiety to any other person, or to persistently make telephone calls without reasonable cause for any of those purposes.
Section 20 extends to messages sent by social network apps for smartphones through the Internet: e.g. WhatsApp, Line or Skype.
Sometimes, persistent telephone calls, particularly silent calls, can be disruptive and harmful to mental or physical health, particularly if the victim is known to be alone and afraid. As established in English case law, recognisable psychiatric illness can amount to bodily harm (but this does not include fear, distress or panic). The stalker can be charged with Assault Occasioning Actual Bodily Harm.
To know more about this, you may go to Daily Lives Legal Issues > Stalking > Possible criminal charges against a stalker under the Summary Offences Ordinance > A. Offences in connection with telephone calls or messages, or telegrams .
3. If a stalker is not prosecuted, what can a victim do?
Where a stalker commits a civil wrong, such as assault, intimidation, trespass or nuisance, the victim may bring a civil lawsuit in tort.
The stalker’s activities may be both a crime and a tort (a civil wrong). A crime is an offence against society as a whole and is prosecuted by the HKSAR Government. The Secretary for Justice has the responsibility for the conduct of criminal prosecutions, including the decision of whether or not to prosecute in a particular case. A tort is a civil wrong and can be the subject of proceedings by the person who is wronged by the stalker’s conduct. A successful criminal prosecution leads to the punishment of the offender. Successful proceedings in tort lead to an award of monetary compensation to the person wronged, and where there is evidence that the wrongful conduct is likely to be repeated, an injunction may be granted to prevent repetition of the wrongful conduct.
For more details, please refer to Daily Lives Legal Issues > Stalking > Civil procedures .
4. What happens if someone has breached an injunction?
Breach of an injunction is a contempt of court punishable by a fine or imprisonment. Imprisonment is rarely used. Rather than impose immediate imprisonment, the court which made the injunction may, particularly on the first breach or where the breach is not that serious, accept an undertaking (a promise) from the defendant not to commit further breaches of the injunction. As breach of an injunction is not a criminal offence, the police cannot arrest a person who is in breach of an injunction, unless it is necessary to prevent a breach of peace, or the breach itself amounts to a criminal offence. Enforcement of the injunction is a matter for the plaintiff. The plaintiff is responsible for issuing the necessary documentation to bring the defendant back before the court which made the injunction and to show that the injunction has been breached.
To understand more about this, please go to Daily Lives Legal Issues > Stalking > Civil procedures > D. Enforcement of injunctions .